Jonah Patel
The Canadian Constitution is a complex mix of statutes, orders, and British and Canadian court decisions. It includes the British North America Act, 1867 (now known as the Constitution Act, 1867), the Statute of Westminster, 1931, the Constitution Act, 1982, and any amendments to these acts. The Canadian Charter of Rights and Freedoms was enacted in 1982 as part of the Constitution, along with a set of procedures allowing for amendments to be made in Canada. The Charter guarantees and sets limits to the fundamental rights and freedoms of Canadians, including the rights of Indigenous peoples. It also guarantees rights equally to males and females. The Constitution Act, 1867, provides for a constitution similar in principle to the largely unwritten constitution of the United Kingdom and recognizes Canada as a constitutional monarchy and federal state.
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What You'll Learn
The Canadian Charter of Rights and Freedoms
The Charter has been a source of change and progress in Canadian society, with Canadian courts rendering hundreds of decisions applying the Charter to bring Canadian laws in line with Canadian values. For example, the Charter has reinforced the rights of official language minorities and led to the recognition and enforcement of the rights of minority and disadvantaged groups.
Section 20 of the Charter outlines the right of Canadians to communicate with the federal government or the Government of New Brunswick in either English or French. These governments must provide services in both official languages at their central offices and other locations where there is significant demand or where it would be reasonable to expect them. This section also protects existing language rights in other parts of the Constitution, such as the right of the people of Quebec to use either English or French in the Quebec legislature and before the courts of that province.
The Charter also includes provisions for the rights of Indigenous peoples in Canada. Section 35 of the Constitution Act, 1982, recognizes and affirms the existing Aboriginal and treaty rights of Indigenous peoples, which are rights related to the historical occupancy and use of the land. This helps Indigenous peoples preserve their customs and traditions for future generations. The Charter guarantees Indigenous peoples their rights under the Royal Proclamation of 1763, which specified that they would continue to hold all lands they had not ceded or sold.
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The Constitution Act, 1867
The Act also authorized Parliament to establish a general court of appeal for Canada, as well as any additional courts to better administer the laws of Canada. Under this authority, the Federal Courts, the Tax Court, and the Supreme Court of Canada were established.
The anniversary of the act's entry into force and the creation of the Dominion of Canada on 1 July 1867 is observed annually as Canada Day and is celebrated as Canada's national holiday.
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The Constitution Act, 1982
Prior to the Charter, the Canadian Bill of Rights, enacted in 1960, protected similar rights and freedoms. However, it was only a federal statute and was limited in its effectiveness as it did not directly apply to provincial laws. The Charter, on the other hand, is a part of the Constitution and has been a driving force for change and progress in Canadian society. It has led to the recognition and enforcement of the rights of minority and disadvantaged groups, including the rights of Indigenous peoples.
Section 35 of the Constitution Act, 1982, specifically recognises and affirms the "existing" aboriginal and treaty rights in Canada. These rights protect the activities, practices, and traditions integral to the distinct cultures of Indigenous peoples. Treaty rights enforce agreements made between the Crown and Indigenous peoples. Additionally, Section 35 provides protection for aboriginal title, ensuring the use of land for traditional practices. This section extends rights to Indian, Inuit, and Métis peoples, guaranteeing these rights equally to male and female persons.
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The British North America Act, 1867
The act established the Dominion of Canada by uniting the North American British colonies of Canada, New Brunswick, and Nova Scotia. The former Province of Canada was divided into two: Canada West and Canada East, which were renamed Ontario and Quebec, respectively, and became full provinces. The act also outlined the composition of the House of Commons, with 308 members representing various provinces.
Additionally, the act included provisions regarding the powers and functions of the Governor General, who acts with the advice or consent of the Queen's Privy Council for Canada. It also provided for the legislative jurisdiction of the federal government over "Indians and lands reserved for the Indians", with the authority being exercised by the Aboriginal Affairs and Northern Development Canada (AANDC).
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The Statute of Westminster, 1931
The Canadian Constitution includes core written documents and provisions that are constitutionally entrenched, taking precedence over all other laws and placing substantive limits on government action. These include the Constitution Act, 1867 (formerly the British North America Act, 1867), and the Canadian Charter of Rights and Freedoms.
The statute implemented decisions made at the British Imperial Conferences in 1926 and 1930. The 1926 conference declared that the self-governing dominions were to be regarded as:
> autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.
The statute left many difficult legal and constitutional questions unsettled, such as the functions of the Crown and the possibility of one autonomous community remaining neutral while others are at war. However, mutual forbearance and constant consultation between the units made the formula remarkably successful in operation.
The British North America Acts, the written elements of the Canadian Constitution in 1931, were excluded from the application of the statute due to disagreements between the Canadian provinces and the federal government over how the Acts could be amended. These disagreements were only resolved in time for the passage of the Canada Act 1982, which completed the patriation of the Canadian Constitution to Canada.
The Statute of Westminster, as amended, remains a part of the Canadian Constitution by virtue of Section 52(2)(b) of the schedule to the Constitution Act, 1982. The Newfoundland Terms of Union also expressly provide for the application of the Statute of Westminster to the province of Newfoundland and Labrador.
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